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S5922 - Details

Law Section:

General Obligations Law

Laws Affected:

Add §11-108, Gen Ob L

S5922 - Summary

Provides for compensation for injury or death caused by the negligent entrustment of a firearm.

S5922 - Sponsor Memo

BILL NUMBER: S5922
TITLE OF BILL :
An act to amend the general obligations law, in relation to providing
for compensation for injury or death cause by the negligent
entrustment of a firearm
PURPOSE :
To extend the negligent entrustment liability of firearm manufacturers
and sellers to the maximum extent allowable under federal law.
SUMMARY OF PROVISIONS :
Section 1 establishes the legislative intent.
Section 2 amends the general obligations law by adding a new section
11-108 creating a statutory right of action for negligent entrustment
of a firearm. Negligent entrustment means "the supplying of a firearm
by a seller for use by another person when the seller knows, or
reasonably should know, the person to whom the product is supplied is
likely to, and does, use the product in a manner involving
unreasonable risk of physical injury to the person or others."
Section 3 establishes the effective date.

JUSTIFICATION :
In 2016, almost 1,000 people were shot in New York City alone. New
York State law enforcement agencies recovered 52,915 illegally
trafficked firearms between 2010 and 2015, with 7,827 guns recovered
in 2015 alone, mostly handguns. 18,361 of these guns come from the
"Iron Pipeline" states: Pennsylvania, Ohio, Virginia, North Carolina,
South Carolina, Georgia, Florida, and Ohio. It is time that the
corporations that enable this illegal gun trafficking and violence on
our streets be held to account.
Gun manufacturers and sellers are pushing dangerous, military-style
weapons onto our streets by irresponsibly marketing and distributing
weapons designed to kill to civilians with no training. Criminals can
buy assault weapons in states with lax gun control laws and bring them
into our state to harm our citizens, but the victims of the "Iron
Pipeline" have no recourse in our courts against the companies that
make gun trafficking possible.
The federal Protection of Lawful Commerce in Arms Act, 109 P.L. 92,
119 Stat. 2095, bars almost all civil actions or proceedings against
manufacturers and sellers of firearms, but it provides an exemption
for actions brought for negligent entrustment. Negligent entrustment
under the act "means the supplying of a firearm by a seller for use
by another person when the seller knows, or reasonably should know,
the person to whom the product is supplied is likely to, and does, use
the product in a manner involving unreasonable risk of physical injury
to the person or others."
In Hamilton v. Beretta U.S.A Corp., 96 N.Y.2d 222 (2001), the New York
Court of Appeals ruled that gun manufacturers did not have a duty to
exercise reasonable care in the marketing and distribution of the
handguns they manufacture. Id. at 230-31. The Court held that for a
plaintiff to succeed on a negligent entrustment claim against a
manufacturer whose guns ended up in the black market, the plaintiff
has to show that the manufacturer sold guns to a distributor the
manufacturer knew or had reason to know was "engaging in substantial
sales of guns into the gun-trafficking market on a consistent basis."
Id. at 237. The Court held that for a claim of negligent entrustment
to succeed, the supplier of a chattel must have or should have
"knowledge concerning the entrustee's propensity to use the chattel in
an improper or dangerous fashion." Id.
The purpose of this act is to overturn the holding in Hamilton v.
Beretta U.S.A. Corp. regarding the tort of negligent entrustment as
applied to firearm manufacturers and sellers and to extend the
negligent entrustment liability of firearm manufacturers and sellers
to the maximum extent allowable under federal law. This policy will
allow the victims of gun violence to get their day in court and be
compensated for the irreparable harm enabled by gun manufacturers and
sellers.
LEGISLATIVE HISTORY :
New bill.
FISCAL IMPLICATIONS :
Minimal.
EFFECTIVE DATE :
This act shall take effect immediately and shall apply to all claims
arising on or after such effective date and to all claims pending on
such effective date.

S T A T E O F N E W Y O R K
________________________________________________________________________
5922
2017-2018 Regular Sessions
I N S E N A T E
May 5, 2017
___________
Introduced by Sen. BAILEY -- read twice and ordered printed, and when
printed to be committed to the Committee on Judiciary
AN ACT to amend the general obligations law, in relation to providing
for compensation for injury or death cause by the negligent entrust-
ment of a firearm
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative intent. The federal Protection of Lawful
Commerce in Arms Act, 109 P.L. 92, 119 Stat. 2095, bars almost all civil
actions or proceedings against manufacturers and sellers of firearms,
but it provides an exemption for actions brought for negligent entrust-
ment. Negligent entrustment under the act means the supplying of a
firearm by a seller for use by another person when the seller knows, or
reasonably should know, the person to whom the product is supplied is
likely to, and does, use the product in a manner involving unreasonable
risk of physical injury to the person or others. It is the intent of the
legislature to extend the negligent entrustment liability of firearm
manufacturers and sellers to the maximum extent allowable under federal
law.
S 2. The general obligations law is amended by adding a new section
11-108 to read as follows:
S 11-108. COMPENSATION FOR INJURY OR DEATH CAUSED BY THE NEGLIGENT
ENTRUSTMENT OF A FIREARM. 1. ANY PERSON WHO IS INJURED IN PERSON, PROP-
ERTY, MEANS OF SUPPORT, OR OTHERWISE BY THE USE OF A FIREARM SHALL HAVE
A RIGHT OF ACTION AGAINST ANY PERSON OR ENTITY WHO CAUSED OR CONTRIBUTED
TO THE INJURY THROUGH THE NEGLIGENT ENTRUSTMENT OF A FIREARM. IN ANY
SUCH ACTION, THE INJURED PERSON SHALL HAVE A RIGHT TO RECOVER ACTUAL AND
PUNITIVE DAMAGES.
2. IN CASE OF THE DEATH OF THE PERSON INJURED, THE ACTION OR RIGHT OF
ACTION GIVEN BY THIS ACTION SHALL SURVIVE TO HIS OR HER EXECUTOR OR
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11472-01-7

S. 5922 2
ADMINISTRATOR, AND THE AMOUNT SO RECOVERED BY EITHER A SPOUSE OR CHILD
SHALL BE HIS OR HER SOLE AND SEPARATE PROPERTY.
3. ACTIONS AS DESCRIBED IN SUBDIVISION ONE OR TWO OF THIS SECTION MAY
BE BROUGHT IN ANY COURT OF COMPETENT JURISDICTION.
4. IN ANY CASE WHERE PARENTS SHALL BE ENTITLED TO SUCH DAMAGES, EITHER
PARENT MAY SUE ALONE THEREFOR, BUT RECOVERY BY ONE OF SUCH PARTIES SHALL
BE A BAR TO SUIT BROUGHT BY THE OTHER.
5. AS USED IN THIS SECTION, "NEGLIGENT ENTRUSTMENT" MEANS THE SUPPLING
OF A FIREARM BY A SELLER FOR USE BY ANOTHER PERSON WHEN THE SELLER
KNOWS, OR REASONABLY SHOULD KNOW, THE PERSON TO WHOM THE PRODUCT IS
SUPPLIED IS LIKELY TO, AND DOES, USE THE PRODUCT IN A MANNER INVOLVING
UNREASONABLE RISK OF PHYSICAL INJURY TO THE PERSON OR OTHERS.
6. FOR THE PURPOSES OF THIS SECTION, THE DISTRIBUTION OF AN AUTOMATIC
OR SEMI-AUTOMATIC FIREARM NOT TYPICALLY USED FOR LAWFUL HUNTING
PURPOSES, INCLUDING BUT NOT LIMITED TO HANDGUNS AND ASSAULT WEAPONS, TO
THE PUBLIC, INCLUDING THOSE WITH A PERMIT TO POSSESS A FIREARM, INVOLVES
AN UNREASONABLE RISK OF PHYSICAL INJURY TO OTHERS.
S 3. This act shall take effect immediately and shall apply to all
claims arising on or after such effective date and to all claims pending
on such effective date.

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